D. Md. Notes Split Re Burden of Persuasion in FMLA Context

Per Jordan v. Radiology Imaging Associates, --- F.Supp.2d ----, 2008 WL 4286840 (D. Md. Sept. 12, 2008):

Therefore, an employer that does not restore an employee returning from FMLA [Family Medical Leave Act] leave can avoid liability by showing “that [the] employee would not otherwise have been employed at the time reinstatement is requested.” Yashenko, 446 F.3d at 549 (citing 29 C.F.R. § 825.216(a)). ^FN3

FN3. The Fourth Circuit has interpreted this standard to put a burden of production on the employer. Yashenko, 446 F.3d at 549. When an employee shows that she is entitled to restoration under the FMLA, the employer must “come forward with evidence that it would have discharged the employee whether or not he took FMLA leave .” Id. However, the Fourth Circuit has not resolved which party will bear the ultimate burden of persuasion. Id. (stating that an employee's claim failed because the employer had presented evidence that the plaintiff was terminated in a reorganization and the employee failed to offer evidence to “dispute the company's contention that Yashenko's position was eliminated in a legitimate reorganization”). There is currently a circuit split on the burden of proof issue. Compare Rice v. Sunrise Express, 209 F.3d 1008, 1018 (7th Cir.2000) (ultimate burden falls on employee), with Smith v. Difee Ford-Lincoln-Mercury, Inc., 298 F.3d 955, 963 (10th Cir.2002) (employer has the ultimate burden).